Indiana Law Journal Volume 37 Issue 3 Article 7 Spring 1962 The Constitutional Status of the Indiana Sunday Closing Law Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Commercial Law Commons, and the Constitutional Law Commons Recommended Citation (1962) "The Constitutional Status of the Indiana Sunday Closing Law," Indiana Law Journal: Vol. 37 : Iss. 3 , Article 7. Available at: https://www.repository.law.indiana.edu/ilj/vol37/iss3/7 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. NOTES ment and not on the rights of the parties within the framework of the system, was the result. To say that the Glidden decision was a matter of contract interpreta- tion is not to minimize its significance or its potential effect in the field of labor relations. The case has already been cited in a similar plant re- moval case 3 and would seem to have social and economic ramifications far beyond the issue of the survival of seniority rights.64 It is suggested, however, that the most important consequence of the Glidden decision will be to force the issue of plant removal and its effect upon the rights of the parties under the agreement back into the frame- work of the collective bargaining system. The employer desirous of avoiding the result of the Glidden case will be required to raise the issue of plant removal during contract negotiations in the attempt to incor- porate a satisfactory resolution of the problem into the written agreement. Ironically, however, the mere raising of the issue may be tantamount to incorporating the result of the Glidden case into the agreement, because (and this is the significant aspect of the Glidden decision) the employer will be required to raise the issue at a time when the union is in a position to employ its economic weapons in support of its demands, i.e., during contract negotiations as opposed to immediately preceding the move. Un- like the situation as it existed in Glidden, the effect of plant removal up- on employee tenure will not be dependent upon the good faith of the em- ployer, but upon the bargaining power of the union. In that the Glidden decision places the burden on the employer not only to raise the issue of plant removal, but also to resolve it, the bargaining advantage would seem to be with the union. Seen in this light, Glidden appears to be an important tactical victory for organized labor. THE CONSTITUTIONAL STATUS OF THE INDIANA SUNDAY CLOSING LAW Recent decisions of the United States Supreme Court' indicate that 63. Oddie v. Ross Gear & Tool Co., 195 F. Supp. 826 (E.D. Mich. 1961). De- fendant Ross Gear and Tool Co. announced to its employees its intention of closing down operations at its Michigan division and moving to Tennessee, and of its plans to terminate employment one month prior to the expiration date of the collective bargaining agreement. A group of employees thereupon brought an action for declaratory relief in the Federal District Court. The court relying solely on Glidden held that the em- ployees were entitled to employment at the Tennessee plant by virtue of their seniority rights. 64. Wall Street Journal, July 21, 1961, p. 1, col. 6. 1. McGowan v. Maryland, 366 U.S. 420 (1961); Two Guys From Harrison- INDIANA LAW JOURNAL Sunday Closing legislation has withstood the test of constitutionality equally as well as it has withstood the ravages of time.2 The Court ruled that the Sunday Blue Laws of Maryland, Massachusetts, and Pennsyl- vania were not repugnant to the first or fourteenth amendments of the United States Constitution. Although a number of cases involving this type of legislation had reached the Court in the previous three quarters of a century,3 this marked the first time that the problem had received deliberate reflection against the background of the complexities of mod- ern society. Similar to the 1954 decisions on civil rights,4 the Supreme Court holdings have acted as a catalyst to a chain reaction of controversy in many cities and states. The reverberations have been particularly severe in Indiana. There have been wholesale arrests for violating the Indiana statute as well as the issuing of temporary injunctions against law en- forcement agencies on constitutional grounds.5 As a result of such con- fusion in interpretation and enforcement, it becomes significant to review the treatment accorded this area of law in the courts of this state in order to determine the effect of the United States Supreme Court decisions on the general Sunday Closing Law in Indiana. It should be noted that the recent Court decisions support only the proposition that Sunday Closing Laws are not per se violative of the Constitution. The statute of each state and its application in individual instances may yet be subject to at- tack on constitutional grounds. Moreover, even though the statute is valid under the Federal Constitution, the state court is not precluded from examining it under the State Constitution. SUNDAY CLOSING LAWS: THE BACKGROUND AND THE SUPREME COURT DECISION The question of Sunday laws and their enforcement has occupied a significant place in the laws of western governments since 321 A.D. when the initial Sunday law, issued by Constantine, proscribed all labor on the venerable day of the sun.' The first important English legislation on the subject was the statute of Henry VI in 1448 forbidding the show- -Allentown v. McGinley, 366 U.S. 582 (1961) ; Braunfield v. Brown, 366 U.S. 599 (1961); Gallagher v. Crown Kosher Super Market, 366 U.S. 617 (1961). 2. The Fourth Commandment, Exodus 31:14, is the spiritual basis for all Sunday closing laws. 3. Kidd v. Ohio, 358 U.S. 132 (1958); Ullner v. Ohio, 358 U.S. 131 (1958); Gro- chowiak v. Pennsylvania, 358 U.S. 47 (1958) ; Gundaker Central Motors v. Gassert, 354 U.$. 933 (1956); McGee v. North Carolina, 346 U.S. 802 (1953); Freidman v. New York, 341 U.S. 907 (1950); Petit v. Minnesota, 177 U.S. 164 (1899); Hennington v. Georgia, 163 U.S. 299 (1895); Soon Hing v. Crowley, 113 U.S. 703 (1884). 4. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). 5. Indianapolis Star, Sept. 30, 1961, p. 1, col. 1. 6. Code Justin. 3.7.1.3. NOTES ing of goods and merchandise at all fairs and markets on Sundays and holidays.7 In 1677 the English enacted a general statute requiring the cessation of all business or labor of a person's ordinary calling on the Lord's Day; however, works of charity and necessity were exempted from this proscription.' This statute remains the basic law of England; and at the time of the American Revolutionary War, it was the law en- forced in all of the American colonies.9 At the present time, forty-nine states prohibit some sort of conduct on Sunday which is legally performable on other days of the week."° Thirty-one of the forty-nine states provide for a general prohibition of one's usual activity with exceptions for works of charity and necessity." Historically, these statutes set aside Sunday as the day of rest to insure religious observance of the Sabbath. Early cases admit that this was their purpose.12 It appears, because of the wording of the statutes 3 and the fact that often closing is required only during normal hours of church attendance, 4 that these religious overtones have carried forward to the present day. Nevertheless, with surprising unanimity, state courts have upheld the Blue Laws against claims that they violate the religious guaranties of the state constitutions. In only one case has such a law been invalidated on religious grounds, 6 and that decision was shortlived.Y Attacks on state Sunday Closing Laws based on the religious guaran- tees of the first amendment have only recently become available. Only since the end of World War I has the United States Supreme Court in- dicated that the provisions of the first amendment of the Federal Con- stitution are applicable to the state through the fourteenth amendment.' It was not until 1940 that the religious provisions of the first amendment were specifically declared to be applicable to the states. 9 Since Indiana 7. 27 Hen. 6, ch. 5 (1448). 8. 29 Char. 2, ch. 7 (1677). 9. Johnson, Sunday Legislation, 23 Ky. L.J. 131, 136 (1934). 10. McGowan v. Maryland, 366 U.S. 420, 553-59 (1961) (concurring opinion) (app.). 11. Ibid. 12. See Shover v. State, 10 Ark. 259 (1850); Judefind v. State, 78 Md. 510, 28 Ati. 405 (1894) ; Commonwealth v. White, 190 Mass. 578, 77 N.E. 636 (1906). 13. Such religious terms as "Lord's Day," "Sabbath Day," "Christian Sabbath," "worldly employment," "Sabbath breaking," "secular business," "violate the Sabbath," and other similar expressions are prevalent in Sunday statutes. See, e.g., N.D. REV. CODE § 12-2115 (1943). 14. See, e.g., ME. REv. STAT. ANN. ch. 134, § 35 (1944) ; MISS. COD ANN. § 3957 (1942). 15. See Note, 59 COLUm. L. REv. 1192 (1959). 16. Ex parte Newman, 18 Cal. 502 (1858). 17. Ex parte Andrews, 18 Cal. 679 (1861). 18. E.g., De Jonge v. Oregon, 299 U.S. 353 (1937); Near v. Minnesota, 283 U.S. 697 (1931) ; Gitlow v. New York, 268 U.S.